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3.5-5 Allocation of Negligence - Two Defendants with
a Special Defense of Comparative Negligence
Revised to January 1, 2008
Note: This charge is designed to be used in a case
in which the plaintiff has brought an action against two defendants between
whom an award of damages may be allocated, and one or both defendants have
filed a special defense of comparative negligence against the plaintiff. It
is designed to be given immediately following Comparative Negligence
–
General, Instruction 3.5-1.
Practice Tip: It is
useful to the jurors at this stage if you distribute copies of the verdict
forms and any special interrogatories and invite them to follow along with
this portion of the charge using the forms as a guide.
In the event that you determine
that the plaintiff will be entitled to some award of money damages – in
other words, the plaintiff has proved all the elements of (his/her) claim,
and neither defendant has proved that the plaintiff was more that 50%
negligent in causing (himself/herself) injury – there is another
determination that you must make.
As with the comparative
negligence analysis, the total amount of the negligence that causes the
injury must equal 100%; but you must allocate that negligence among all of
the parties, depending on what your findings are. Our law requires that you
do this because a defendant is only required to pay damages to an injured
plaintiff based on the percentage of that defendant's negligence and no
more.
Let me give you four
illustrations of how this would work depending on your findings:
1) You may find that the
plaintiff has proved that the negligence of both defendants caused (him/her)
injury and that neither defendant has proved that the plaintiff
(himself/herself) was negligent in any degree. You would assign 0% of
negligence to the plaintiff, and since the plaintiff has proved (his/her)
claims against both defendants, you would have to determine how the
remaining 100% of the negligence is to be allocated between the two
defendants.
2) You may find that the
plaintiff has proved (his/her) claims against only one defendant but that
one or both defendants have proved that the plaintiff's injury was caused by
the plaintiff's own negligence amounting to 50% or less of the total
negligence. Then there are two parties – the plaintiff and one defendant –
between whom you must allocate this 100%.
3) You may find that the
plaintiff has proved (his/her) claims against both defendants, and that the
defendants have proved that the plaintiff's injury was caused by the
plaintiff's own negligence amounting to 50% or less of the total
negligence. Under the comparative negligence rule, the plaintiff is
entitled to a verdict in (his/her) favor, but the effect of that finding by
you would leave three parties among whom to allocate the negligence: the
plaintiff at 50% or less and the two defendants at the remaining
percentage.
4) Finally, there are two
situations in which there would be no allocation among any of the parties.
One is if the plaintiff has not proved that either defendant was negligent
or that none of the negligence of either defendant caused (him/her) to
suffer injury; and the other is if you find that the plaintiff proved
(his/her) claims, but you also find that one or both defendants have proved
that the plaintiff was more than 50% negligent in causing the injury, so
that the plaintiff's negligence is a complete bar to (his/her) prevailing in
this case. In either of those situations, you will return a verdict for the
defendants.
Notes
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